Sanders v. MacFarlane's Candies

Plaintiffs, husband and wife, brought action for serious personal injuries suffered by the wife as the result of a fall in defendant’s store in San Jose. Plaintiff in singular will hereafter refer to the wife. The cause was tried before a jury. Plaintiffs appeal from judgment of non-suit entered at the close of their case. The only question presented is whether their evidence was sufficient to go to the jury. _

_ Plaintiff’s evidence supporting the action was in substance as follows:

Before the accident plaintiff was a dancing teacher, teaching ballet, tap, acrobatic dancing, et cetera. In the afternoon of May 16, 1949, she entered the store with her mother. She observed the floor. It was polished. “. . . the floor looked very shiny and pretty, and I remarked that the—the floor looked very lovely. Looks almost oily, I said, it was so shiny.” The floor was of a material similar to linoleum or asphalt tile. She asked a salesgirl for a certain kind of candy, of which she did not know the name but which she described. When the girl went to the rear of the store to get it, plaintiff followed

The manager of defendant’s San Jose store testified under section 2055, Code of Civil Procedure, that she did not know whether prior to the accident floor wax had been applied to the floor of the store. The janitor came in at night and took care of that. She did not know what was done with the floor. The janitor came once a week on the week end. She believed he used to come in Sunday nights. Supplies for the janitor were kept in back of the store. Among them was liquid wax in gallon bottles and a mop. There was liquid wax in the storeroom at the closing of the store on Saturday evening preceding the accident (which happened on a Monday). She did not check on Monday to see whether any wax had been used.

Appellant contends that from the above evidence a jury was entitled to draw the inferences that defendant’s janitor waxed the floor of the store during the week end preceding the accident and left excess wax near the base of the counter and that plaintiff slipped because of that surplus wax; therefore the case should have gone to the jury. Respondent contends that the evidence did not permit any inference that it was the janitor who put any wax or a surplus of wax on the floor, or that he did so negligently, or that defendant had or should have had knowledge of the presence of the wax.

The position of appellant must be sustained. The parties agree and the rule is too well settled to require citation of authority that if inferences which can reasonably and fairly be deduced from the evidence can sustain the allegations of plaintiff it is error to grant a nonsuit. “Whether a particular inference can be drawn from certain evidence is a question of law, but whether the inference shall be drawn, in any given case, is a question of fact for the jury.” (Blank v. Coffin, 20 Cal.2d 457 , 461 [ 126 P.2d 868 ].) An inference cannot be based on mere possibilities; it has been held that it must be based on probabilities. (32 C.J.S. 1132, 1133; Gardner v. Seymour, 27 Wn.2d 802 [ 180 P.2d 564 , 569]; Kentwood Lbr. Co. v. Illinois Cent. R. Co., 65 F.2d 663 , 665.) This accords with the general principle, enunciated more than once by this court, that in civil cases the rule of decision is a rule of probability only. (Spolter v. Four-Wheel Brake Serv. Co., 99 Cal.App.2d 690 , 693 [ 222 P.2d 307 ]; Wirz v. Wirz, 96 Cal.App.2d 171 , 175 [ 214 P.2d 839 , 15 A.L.R.2d 1129 ].) “It is not necessary, in order to establish' a theory by circumstantial evidence, that the facts be such and so related to each other that such theory is the only conclusion that can fairly or reasonably be drawn therefrom ...” (Katenkamp v. Union Realty Co., 36 Cal.App.2d 602 , 617 [ 98 P.2d 239 ].) The plaintiff relying on circumstantial evidence does not have to exclude the possibility of every other reasonable inference possibly derivable from the facts proved. (Vaccarezza v. Sanguinetti, 71 Cal.App.2d 687 , 692 [ 163 P.2d 470 ]; Spolter v. Four-Wheel Brake Serv. Co., supra, at p. 694.)

It is true, as urged by respondent, that no inference of negligence arises upon proof of only a fall on defendant’s

Storekeepers are under duty to use ordinary care to keep the floors of their premises reasonably safe for the business invitees who must pass over them. (Tuttle v. Crawford, 8 Cal.2d 126 , 130 [ 63 P.2d 1128 ].) If a storekeeper has a floor waxed or polished it must be done in such a manner that it remains reasonably safe for his invitees. (Nicola v. Pacific Gas & Elec. Co., 50 Cal.App.2d 612 , 615 [ 123 P.2d 529 ]; Lorenz v. Santa Monica etc. School Dist., 51 Cal.App.2d 393 , 399 [ 124 P.2d 846 ].) When an unsafe condition which causes injury to an invitee has been created by the owner of the property himself or by an employee within the scope of Ms employment, the invitee need not prove the owner’s notice or knowledge of the dangerous condition; the knowledge is imputed to the owner: (Hatfield v. Levy Brothers, 18 Cal.2d 798 , 806 [ 117 P.2d 841 ].) In Sharpless v. Pantages, 178 Cal. 122 [ 172 P. 384 ], the evidence showed that plaintiff slipped because of the loose

Respondent relies mainly on McKellar v. Pendergast, 68 Cal.App.2d 485 [ 156 P.2d 950 ], and Owen v. Beauchamp, 66 Cal.App.2d 750 [ 152 P.2d 756 ], for the contention that the evidence was insufficient as a matter of law. The McKellar case is not in point. The plaintiff slipped on some spots of oily substance on the lobby floor of an apartment house; she contended they were garbage drippings, negligently dropped by the janitor, but there was no evidence identifying the substance as garbage drippings; the District Court held that any other person could have left the drops of unknown oily substance as well as the janitor. The Owen case is nearer to the one before us. There the plaintiff slipped in a dentist’s office on some dental wax of the same kind as used by the defendant dentist. The District Court affirmed a judgment on a directed verdict for defendant saying that the wax could have been imported by another invitee or by an employee of respondent one minute before plaintiff fell, without the knowledge of defendant. It may be doubted whether the fact that the material on which plaintiff slipped was identified as dental wax as used by defendant did not reasonably and fairly permit an inference of probability that the wax was dropped by defendant or by an employee within the scope of his employment. (There was a dissent in the District Court and two justices voted for hearing in the Supreme Court.) However even if the decision were correct, each case of this kind must be judged on its own facts (Ahern v. S. H. Kress & Co., 97 Cal.App.2d 691 , 698 [ 218 P.2d 108 ]) and the probabilities as to dental wax dropped in a dental office need not be the same as those with respect to excess floor wax found applied to part of the floor of a store. As said before, the evidence in this case can be held to show the probability that the wax on

Judgment reversed.

Dooling, J., concurred.

A petition for a rehearing was denied September 3, 1953, and respondent’s petition for a hearing by the Supreme Court was denied October 1, 1953.